The Struggle To Fulfill a Judicial Mandate: How Not to 'Reconstruct' Education in W. Va.

West Virginia may be "almost heaven." But a circuit-court judge and
a citizens' coalition are raising hell with West Virginia's political
and education establishments over the lack of both quality and equality
in the state's school systems. It is no simple backwoods exorcism or
another internecine feud between the Hatfields and the McCoys. On the
contrary, the current struggle over school reform in West Virginia has
profound implications for the rest of the nation--and may well be a
harbinger of the tensions likely to burden public education for the
remainder of the 1980's.

This turmoil has been triggered by the verdict of Special Circuit
Court Judge Arthur M. Recht (acting on behalf of the West Virginia
Supreme Court) in the case of Pauley v. Bailey.

Judge Recht ruled West Virginia's system of financing and delivering
public education is unconstitutional. In a landmark 244-page opinion,
he declared that the state's constitutional mandate to provide a
"thorough and efficient" education for every child has been grossly and
systematically violated by the county school systems, as well as by the
relevant state agencies. He ordered the state legislature and the
appropriate state and county agencies to do "no less than completely
re-construct the entire system of education in West Virginia."

This sweeping mandate for reform was long overdue. Judge Recht's
clear analysis of the failures of the public schools, and his courage
in challenging a powerful array of state and county officials to uphold
their responsibilities to West Virginia's children, should be the
impetus for a dramatic upgrading of the West Virginia schools. This
extraordinary judicial decision has opened the door to lasting,
significant school improvement in a state where assuring the quality of
the education provided to all children has been a matter of rhetoric
rather than reality.

Not everyone has applauded Judge Recht's verdict. In fact, the
state's political and education establishments have done everything in
their power to once again slam the door shut on school reform. After
all, there are numerous state and county officals with a strong vested
interest in maintaining the status quo that they have controlled--and
from which they have benefited both politically and economically--for
many years. As a consequence, a campaign has been mounted to negate--or
at least to lessen the impact of--the Recht mandate.

Led by the state's erstwhile "liberal" governor, John D. Rockefeller
IV, these attacks have already taken their toll. For example, Judge
Recht decided (under intense political pressure) to put aside his
original intention to appoint an independent special commissioner to
oversee the creation and implementation of a master plan reflecting his
decision in the case. Instead, he is now allowing the West Virginia
Department of Education--one of the major parties found guilty in
Pauley v. Bailey--to dominate the planning and implementation
processes.

Rarely in legal history have the guilty parties been given the
authority to decide what restitution will be made to their innocent
victims. As a Charleston Daily Mail editorial noted: "We always thought
if you lost a court case, it was the other guy who got his way. ... If
this were boxing, people would be yelling 'fix."'

Still, there is reason for optimism that the rare opportunity for
lasting school improvement that the Recht decision offers will not be
squandered. Judge Recht has retained the court's jurisdiction to review
(and reject if necessary) the department of education's plan and to
name a special commissioner. If Mr. Recht holds firm in seeing his
verdict through the implementation phase, he can create an education
system that fully and equitably benefits West Virginia's young
people.

He will get significant support to that end from the West Virginia
Education Project (WVEP)--a statewide coalition of parent groups,
teachers, labor unions, community organizations, and other interested
citizens. The WVEP is led by a dynamic and effective rural activist,
Linda Martin, who is working to make this organization a significant
counterbal-ance to the forces encouraging the judge and the legislature
to tread lightly on the status quo and to make only token changes in
the public schools.

The resolution of this case is now at a critical juncture. The West
Virginia department of education has just submitted its proposed
"master plan" for Judge Recht's consideration. The WVEP is opposing the
state's plan on the grounds that it will not result in a genuinely
"thorough and efficient" education system--even by the time it is fully
implemented in the year 2000! Although Judge Recht denied the WVEP's
motion to be included as an official plaintiff in this suit, he did
grant them status as a "friend of the court" and will take their
recommendations into account as he decides what comes next. Once again,
the ball is in Judge Recht's court.

Beyond confirming that education,1lpolicy is an inherently and
intensely politi-cal exercise--rather than a technical one best left to
experts--the Recht decision reveals a number of issues confronting
public schools,1lthroughout the country.

As the courts continue to play an active role in the resolution of
education issues, the tension between their role in assessing what is
wrong and their role in determining how it should be remedied will
continue to grow. In Pauley v. Bailey, Judge Recht's diagnosis of the
financial and educational ills of the public schools was much more
solid than his prescriptions for how these ills ought to be cured. The
lesson here is hardly new--that judicial activism is most effective
when applied to the direct resolution of factual concerns and to the
indirect resolution of value-laden concerns through the enforcement of
just and appropriate procedures. Still, the lesson is worth remembering
as the courts continue to intervene in education policy.

One of the problems with the Recht opinion (and indeed, much of
American education) is that it confuses educational standards with
educational standardization. In other words, it confuses the level of
quality that schools must attain with the idea that there is only one
sensible way for all schools to attain that level of quality. Setting
standards speaks to what schools must do and to what parents and
students have a right to expect of these public institutions. By
contrast, standardization (although it sounds the same) is really a
very different idea, for it refers to a very specific strategy for how
these standards can be achieved.

Education is still much more of an art than a science, and much more
of a process of trial and error than a cut-and-dried or mechanical set
of procedures. What the court, the legislature, and the education
profession must insist upon is a high standard of quality, not a
uniform standard of school1lorganization and instruction. Ironically, a
major push for standardization is more likely to result in consistent
mediocrity than in genuine excellence.

There is also an underlying assumption in the Recht opinion (one
held by many educators) that good resources result in good schools. On
the surface this seems like a reasonable assumption. However, decades
of school reforms focused on the quality and quantity of resources
together with the results of study after study have shattered the
credibility of this assumption.

While it is true that what goes up must come down, it is
emphatically not true that what you put into schools determines
precisely what you get out of them. There are numerous examples from
around the country of very well-endowed schools that offer a poor
education. The opposite is also true. The availability of resources is
important, but is less important in the long run than what schools do
with the resources that are available.

Another lesson of the West Virginia case has to do with decision
making. The planning and implementation of a "thorough and efficient"
system of public schools is being entrusted in West Virginia (as
elsewhere) to a collection of politicians, law-yers, government
officals, and highly placed education administrators. The people
missing altogether are the people with the greatest personal stake in
the outcome and the greatest knowledge of what's worked in the past,
what hasn't worked and why--the parents, teachers, principals, and
students of West Virginia.

One of the recurring themes in the research on school improvement is
that the official, intended beneficiaries only occasionally enjoy the
rewards of the reforms carried out on their behalf. The most frequent
beneficiaries of "reforms" turn out to be the reformers themselves!

The implication of this historically-validated conclusion is clear.
If one is serious about ensuring that the traditional victims of
public-education systems--poor children, minority students, rural
youth, and so forth--become the beneficiaries, then every effort must
be made to vest at least a moderate level of control and authority
directly in them or their guardians.

Parents, students, teachers, and principals need not hold all the
power in order to benefit from reforms. However, they must be viewed as
full and equal partners in the decision-making process (through school
site councils, for example) for a fairer distribution of the
educational rewards to occur.

On another issue, the specific standards Judge Recht proposed are
likely to lead to a new round of school consolidations. By buying into
the metropolitan model of large schools with specialized teachers and
supervisors for every subject and level, Judge Recht (like the West
Virginia department of education he criticizes) overlooks the inherent
virtues of small, community-oriented schools. He also ignores the
potential of advanced technologies to diversify and expand the
curriculum without the need to hire a lot of highly credentialed,
highly paid, and hard-to-find specialists and supervisors.

Ironically, research has shown that consolidation encourages higher
dropout rates among the very students the judge's standards are
supposed to benefit most. The schools may be improved, but that fact
will make little difference to those rural students who predictably
will drop out of school because of the hardship of transportation and
the impersonal feeling of large, consolidated schools.

Meaningful school reform must be based upon improving what actually
happens to children, not upon building fancy new schools or upon making
rural schools into second-rate, miniature replicas of metropolitan
ones.

West Virginia is different from most states in that its constitution
mandates a "thorough and efficient" system of public education. Yet
even in states where this explicit expectation of quality has no firm
legal standing, there is a growing political mandate for thorough and
efficient schools. West Virginia's education system did not meet this
standard and it is an open question as to whether any state's system
would be judged to be thorough and efficient. However, whether the
impetus is legal, political, financial, or moral, the demand for school
systems that meet this criterion will only grow greater in the future.
As a result, the sound of Judge Recht's gavel in West Virginia may
reach far beyond the hills and hollows of Appalachia.

Jonathan P. Sher is associate dean of the school of education at North Carolina State University and an advisor to the West Virginia Education Project.

Vol. 02, Issue 17, Page 24

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